Last week Judge William Alsup ordered the parties to Dr. Rahinah Ibrahim’s lawsuit challenging her placement on the US government’s no-fly list to file redacted public versions, by noon today, of the “sealed” briefs and replies they submitted following the trial in the case last month. These briefs included each side’s proposals of what factual and legal findings they believed the judge should make.

More than an hour after the deadline, nothing had been filed by the defendants, and no explanation had been given. (See the comments below and follow-up articles for updates.) It remains to be seen if the defendants are merely late, if they are ignoring Judge Alsup’s order, or if they are on their way to the 9th Circuit Court of Appeals to seek an emergency writ or stay pending appeal.

Additional information about why Dr. Ibrahim’s daughter Ms. Raihan binti Mustafa Kamal, a US-born citizen, was prevented from flying to the US to testify at her mother’s trial, is due to be made public next Tuesaday, Jan. 28th. Judge Alsup has ordered the government defendants to file a redacted public version of the sworn declaration submitted by Ms. Maureen Dugan, the director of the CBP National Targeting Center and the sole witness at the post-trial hearing concerning what happened to Ms. Mustafa Kamal.

From the redacted version of Dr. Ibrahim’s reply brief on this issue, it appears that the defendants kept trying to get all the evidence regarding Ms. Mustafa Kamal stricken, even after Judge Alsup indicated that he would consider it in ruling on Dr. Ibrahim’s case.

In open court, it was stated that Ms. Mustafa Kamal’s status on the Terrorist Screening Database watchlist was the same as than of her mother, Dr. Ibrahim. Presumably, neither was on the “no-fly” list, at least as of the time of the trial, but both were flagged in the TSDB so that any airline on which they made reservations would be alerted that they might not be admitted to the US. (How that could be the case for Ms. Mustafa Kamal, a US citizen, remains a mystery.) But for that watchlist status, and the message CBP sent to the airline as a result, Ms. Mustafa Kamal would have been allowed to fly to the US to attend and testify at her mother’s trial.

The government defendants continued to argue, apparently, that they were not responsible for how the airlines acted on messages from CBP about individual passengers. The defendants also appear to have continued to claim that Ms. Mustafa Kamal “missed” an earlier flight, despite her sworn declaration to the contrary.

It appears from this that CBP doesn’t understand (or doesn’t want to admit) how its own databases are constructed. CBP has said repeatedly that its TECS and PNR systems include airline records of cancelled reservations. It’s common for a travel agent to make and then cancel reservations on several sets of flights, without the traveler even knowing about it, before finding the ones they think will be best for their client. When travelers have requested their files from CBP, they have often been creeped out to discover that CBP files included details of cancelled reservations for trips that were never taken.

Ms. Mustafa Kamal stated in her declaration that she explored several options with her travel agent because the flights she originally chose turned out to be overbooked. The fact that CBP received notifications that reservations in Ms. Mustafa Kamal’s name had been made and cancelled on several flights other than the ones she eventually planned to travel on doesn’t mean she had been a “no-show” or missed a flight, and the CBP should have known that.

We don’t (yet) have any more information about Judge Alsup’s ruling in this case, beyond his own summary. Judge Alsup directed the parties to “meet and confer” to try to agree on a redacted version of his verdict that could be made public, but didn’t set a deadline for that process. Judge Alsup did order, however, that his full ruling will automatically be unsealed on April 14th unless before then either he or the 9th Circuit Court of Appeals orders otherwise.

3 Responses to “Defendants in “no-fly” case ignore judge’s deadline to make their arguments public”

Despite this report, Dr. Ibrahim’s lawyers were able to file the redacted versions of their briefs today just before noon Pacific time, and we were able to retrieve them. The U.S. Attorney’s office for the Northern District of California, local counsel for all the federal government defendants, is located in the same courthouse building as the court clerk’s office. So it should have been possible for the government defendants to file the redacted versions of their briefs over the counter on time, even if the PACER electronic filing system was inaccessible.

The court clerk has posted an official notice that the electronic filing (ECF) system “has been inaccessible for more than one hour after 12:00 p.m. on Friday, January 24, 2014. Parties should refer to Civil Local Rule 5-1(e)(5) for guidance about how filing deadlines may be affected by the Clerk’s technical failure declaration.”

The local rules of procedure provide that, “Filings due on the day of a technical failure which were not filed solely due to such technical failure shall be due the next court day. Such delayed filings shall be accompanied by a declaration or affidavit attesting to the filer’s failed attempts to file electronically at least two times after 12:00 noon separated by at least one hour on each day of delay due to such technical failure.”

This rule seems to have been written in contemplation of afternoon or end-of-day filing deadlines. In this case, the deadline was noon, and the ECF system was working until after noon. Dr. Ibrahim’s lawyers successfully filed their pleadings just a few minutes before the noon deadline, and we retrieved them a few minutes after noon. So the defendants’ failure to file on time wasn’t due to the PACER/ECF outage later in the afternoon, after the filing deadline.

We’ll see what, if any, explanation of their failure to file on time the defendants eventually submit to the court.

[...] Papers, Please! Challenging ID Demands The Identity Project explores and defends the fundamental American right to move freely around our country and to live without constantly having to prove who we are or why we are here. Home The Issue Who We Are What We Do Secure Flight Featured Cases Policy Analysis Lawyer’s Corner Take Action Press Room Contact Us Friends « Defendants in “no-fly” case ignore judge’s deadline to make their arguments public [...]